Court Requires That You Consider Fair Use Before Sending A DMCA Takedown Notice

A judge has ordered in the Lenz v. Universal Music case that copyright owners must consider whether an unauthorized use of a copyrighted work qualifies as fair use before sending a “DMCA takedown notice.” A takedown notice is used by copyright owners to ask Internet Service Providers (ISP) to remove their materials that have been posted without permission.

Enacted in 1998, the Digital Millennium Copyright Act (DMCA) implemented treaties signed at the 1996 World Intellectual Property Organization (WIPO) Geneva conference. It addresses many issues, one of which affects copyright owners directly. The DMCA states that while an ISP is not liable for transmitting information that may infringe a copyright, the ISP must remove materials from users’ websites that appear to constitute copyright infringement after it receives proper notice. The letter you send is called a “DMCA takedown notice.” The ISP is required to make its agent’s name and address available so that you can send them notification. Your copyright does not have to be registered with the U.S. Copyright Office for you to take advantage of this DMCA provision.

In the Lenz case, the plaintiff sued Universal Music for claims resulting from Universal’s sending a DMCA takedown notice for a video posted on the internet by Lenz. Lenz had posted a video of her toddler son dancing to Prince’s song, “Let’s Go Crazy,” on YouTube. Counsel for Universal Music sent YouTube a DMCA takedown notice claiming that the video infringed its copyright in the music. YouTube complied and notified Lenz about the takedown. Lenz sent a counter-notification and the site put the video back up about six weeks later.

Lenz claimed that her video did not infringe Universal’s copyright because it was fair use. The Lenz court held that a copyright owner must consider whether an unauthorized use of a copyrighted work qualifies as fair use before sending a DMCA takedown notice. Although Universal Music argued that fair use is difficult to determine, the court found that to not be an excuse.

Clearly, the DMCA statute requires that a takedown notice include:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

17 U.S.C. Section 512(c)(3)(A) (emphasis added). The Lenz court focused on the 5th requirement for its finding at issue here.

So what is a copyright owner to do when fair use is a tough call even for lawyers? Review the law as to what comprises fair use. Check my article on fair use to help. But as long as you have a good faith belief that the infringement is not fair use, you should be protected in your demand that infringing materials be removed from a website.

The information provided here is for educational purposes only. If you have legal concerns or need legal advice, be sure to consult with an attorney who is licensed to practice in your jurisdiction.

Carolyn E. Wright is a full-time attorney whose practice is aimed squarely at the legal needs of photographers. Carolyn understands the special issues that confront both professional and amateur photographers alike.

A professional photographer herself, Carolyn has the legal credentials and the experience to protect your rights.Carolyn wrote the book, the "Photographer’s Legal Guide," which was released in 2006 and updated in 2010. Carolyn specializes in wildlife photography and also provides legal information for photographers for free at www.photoattorney.com.